河北法学2024，Vol.42Issue(12)：90-109,20.DOI:10.16494/j.cnki.1002-3933.2024.12.005
法益平衡视角下涉正当防卫案件说服责任分配新探
A New Exploration of the Allocation of Persuasion Burden in Cases Involving Justifiable Defense from the Perspective of Legal Interest Balance
摘要
Abstract
The main facts in cases involving justifiable defense can be broadly divided into two parts:firstly,the fact that the defendant injured or killed the victim,and secondly,the fact that the victim committed an unlawful infringement against the defendant.The defendant generally admits the former,and there is often no dispute between the prosecution and the defense.However,there is often significant controversy between the prosecution and the defense regarding the latter,and it is difficult to ascertain in many cases.The uncertainty of the facts of unlawful infringement in cases involving justifiable defense often manifests as either the prosecution and the defense each sticking to their own version of events,or only the defendant's unilateral statement.The particularity of this uncertainty,where the truth of the facts is unclear,determines that the allocation of the risk of legal interest impairment is the essence of the persuasion burden in cases involving justifiable defense,and also determines that the essential issue of the persuasion burden in such cases is the setting of the standard of proof.To address the confusion in the allocation of the persuasion burden in judicial practice in cases involving justifiable defense,it is necessary to balance the risk of legal interest impairment for both the defendant and the victim.Therefore,the standard of proof for the prosecution to exclude the existence of facts of unlawful infringement should not be the standard of beyond a reasonable doubt,but rather the standard of high probability.关键词
正当防卫/证明责任/说服责任/证明标准/法益平衡Key words
justifiable defense/burden of proof/persuasion burden/standard of proof/legal interest balance分类
社会科学引用本文复制引用
杨文革,宋星衡..法益平衡视角下涉正当防卫案件说服责任分配新探[J].河北法学,2024,42(12):90-109,20.基金项目
本文系2019年国家社科基金一般项目"正当防卫的证明问题研究"(19BFX093)的阶段性成果. （19BFX093）
